Indiana Court Decisions – Feb. 1-14, 2017

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7th Circuit Court of Appeals

Feb. 2

Civil – Ineffective Assistance of Counsel

Dentrell Brown v. Richard Brown


A doctrine allowing prisoners to bring ineffective assistance of counsel claims after a procedural default at the state level applies in Indiana and, thus, entitles a convicted murderer to an evidentiary hearing on his ineffective counsel claim, a divided 7th Circuit Court of Appeals decided.

In June 2008, 13-year-old Dentrell Brown was charged in the Elkhart murder of Gerald Wenger. The state’s key evidence came from the testimony of Mario Morris, who told the court that while he, Brown and Joshua Love, Brown’s co-defendant, were in the Elkhart County Jail, Brown and Love each confessed separately to the murder.

Brown and Love moved for a mistrial after Morris’ testimony, but the trial court denied both motions. Both were convicted of murder, with Brown’s conviction based on a theory of accomplice liability. He was sentenced to 60 years.

On direct appeal, Brown’s counsel argued that the trial court abused its discretion when it dismissed his motion for a mistrial because Morris’ testimony about Love’s statement violated Brown’s confrontation rights. After the appellate court rejected that argument, he moved for post-conviction relief, arguing ineffective assistance of trial counsel because his attorney failed to move to sever Brown’s trial from Love’s, but that motion was also denied.

Brown then filed a federal habeas petition in the U.S. District Court for the Southern District of Indiana, arguing, among other theories, that “his trial lawyer was ineffective for failing to request an instruction limiting the use of Love’s statement, offered through Morris, to Love.” Although he did not raise that claim in the state courts, Brown argued that he should be allowed to bring it before the federal judge under Martinez v. Ryan, 56 U.S. –, 32 S. Ct. 1309 (2012) and Trevino v. Thaler, 569 U.S. – 133 S. Ct. 1911 (2013).

The district court rejected Brown’s habeas petition, as well as his request for an evidentiary hearing. But on appeal, a majority of a panel of 7th Circuit judges held that the Martinez-Trevino doctrine can apply to ineffective counsel claims arising from Indiana state courts.

Under the Martinez-Trevino doctrine, “a distinction between (1) a State that denies permission to raise the claim on direct appeal and (2) a State that in theory grants permission but, as a matter of procedural design and systemic operation, denies a meaningful opportunity to do so is a distinction without difference.”

Thus, because Indiana’s procedural system “as a matter of its structure, design, and operation” does not offer a meaningful opportunity to present a claim of ineffective assistance of trial counsel on direct appeal, the Martinez-Trevino form of cause to excuse procedural default is available to Indiana residents who seek federal habeas relief, Judge David Hamilton wrote for the majority of the divided panel.

Under the Martinez-Trevino doctrine, Hamilton wrote that the court can compare claims actually made against those that might have been made. In Brown’s case, his post-conviction counsel could have raised the claim that his trial counsel was ineffective, but chose not to do so. Thus, because Brown proved that another, stronger claim was available than what his post-conviction counsel raised, he is entitled to an evidentiary hearing, Hamilton wrote.

Further, Hamilton wrote that Brown’s claim of deficient trial counsel and resulting prejudice was substantial and, thus, avoids the procedural default that caused the district court to dismiss his case.

The case was remanded to the district court for an evidentiary hearing on the issue of ineffective post-conviction counsel. If Brown’s claim is found to be substantial, then the case will proceed to an evidentiary hearing on the merits.

Judge Diane Sykes dissented, writing in a separate opinion that Martinez-Trevino does not apply in Indiana because the state instead has a procedure known as Davis/Hatton, which “allows a defendant to suspend the direct appeal to pursue an immediate petition for post-conviction relief” in order to develop a factual record to support an ineffective assistance of counsel claim on direct appeal.

“In short, my colleagues’ decision is not so much an application of Trevino as an unwarranted expansion of it,” Sykes wrote.

Indiana Supreme Court

Feb. 7

Juvenile – CHINS/Premature Appeal

In re: The matter of D.J. and G.J., Children in Need of Services; Gr.J (Mother) and J.J. (Father) v. Indiana Department of Child Services


The Indiana Supreme Court reversed a children in need of services determination after agreeing to hear the parents’ case on the merits, despite their premature notices of appeal.

In July 2015, Gr.J. was bathing her two sons, D.J. and G.J., when she went downstairs for approximately two minutes to let the family dog out. When she returned, G.J., who was 14 months old, was laying face-down in the water, so she grabbed him out and called 911.

The next day, Fort Wayne Police Detective Renee Davis and Joseph Sims, a case worker with the Indiana Department of Child Services, obtained permission to inspect the home. Both noted a strong smell of human and animal feces and urine when they walked in and found the house “in complete disarray.” Additionally, Sims noted that there was no bed for the boys, and J.J. explained that they practiced co-sleeping with all four of them in the same bed.

DCS removed the boys from the home and placed them with their grandparents, then filed a petition asserting that D.J. and G.J. were CHINS. The department began required home-based services with the parents, including psychological evaluations, homemaker services and supervised and unsupervised visitation, among other requirements.

Although the parents had either completed or were in the process of completing their services at the Allen Superior Court’s final fact-finding hearing, the court found that the boys were CHINS and ordered that they stay with their grandparents. J.J. was given unsupervised parenting time, while Gr.J. had supervised time.

The trial clerk issued the notice of completion of clerk’s record on Jan. 6, 2016, but the mother and father filed separate notices of appeal in December 2015, challenging the CHINS determination after the dispositional hearing but before the dispositional order was entered. The Indiana Court of Appeals dismissed the parents’ appeal with prejudice based on a lack of jurisdiction.

But Indiana Supreme Court Justice Geoffrey Slaughter, writing for the unanimous court, noted that an untimely notice of appeal, including a notice that is premature, creates a forfeiture of the appeal, not a loss of jurisdiction. Appellate courts have discretion to disregard forfeiture and hear an appeal on its merits, Slaughter wrote.

“Given the purpose of our appellate rules, our preference for deciding cases on their merits, our Court of Appeals precedent, and the important parental interest at stake, we choose to disregard Parents’ forfeiture and reach the merits,” Slaughter wrote.

The justices held that DCS did not sufficiently prove that J.J. and Gr.J. were unlikely to attend to their sons’ care or treatment without coercive court intervention. That burden of proof requires courts to look at the family’s condition both when the case is filed and when it is heard to avoid punishing parents for mistakes they have already corrected, Slaughter wrote.

Various witnesses at trial testified that both parents seriously complied with their various services and attempted to implement what they learned through those services in their visits with the boys. Thus, the Supreme Court reversed the CHINS determination.

Feb. 8

Civil Tort – Termination

City of Lawrence Utilities Service Board, City of Lawrence, Indiana, and Mayor Dean Jessup, individually and in his official capacity v. Carlton E. Curry


A divided Indiana Supreme Court held that a mayor did not have statutory authority to terminate his city’s utilities superintendent, writing in an opinion that “may well offend sound public policy” that only the utilities board can terminate the superintendent with cause, notice and a hearing.

When Dean Jessup was elected mayor of Lawrence, Carlton Curry, who had been appointed superintendent of the Lawrence Utilities by the City of Lawrence Utility Board with the recommendation of the former mayor, expressed an interest in continuing his municipal service. However, after policy differences between the two men became apparent, the chairman of Jessup’s transition team informed Curry that he was terminated.

In response, Curry filed a complaint alleging state and federal claims against the city. While the federal court awarded summary judgment in the city’s favor on the federal claims, the Marion Superior Court granted summary judgment in Curry’s favor on his wrongful discharge claim, but found in the city’s favor as to back pay under the Wage Payment Statute. Additionally, the trial court denied summary judgment on an intentional interference claim.

On appeal, a divided Indiana Court of Appeals affirmed summary judgment for the city on the Wage Payment Statute issue, but reversed the denial of judgment for the city on the intentional interference and wrongful discharge claims. The case went before the Indiana Supreme Court in October, and the majority affirmed the Marion Superior Court’s original decisions.

Justice Mark Massa, writing for four of the five justices, first noted that although Lawrence Utilities is municipally owned, it is overseen by the board and operated by a board-appointed superintendent. The board was created under Indiana Code to control the city’s municipal utilities, so a “department of utilities” does not exist in Lawrence, Massa wrote. The lack of such a department removes the mayor’s statutory power to appoint or remove the superintendent, the justice wrote.

Further, Indiana Code 8-1.5-3-5(d) holds that “the superintendent may be removed by the board for cause at any time after notice and hearing.” Such clear and unambiguous statutory language means that only the board could have removed Curry from his position, and its members could only do so after notice and hearing, Massa said.

“While this outcome may well offend sound public policy, the Court has long noted and again recently reiterated that our job ‘is to interpret, not legislate, the statutes before (us),’” Massa wrote.

However, because Curry has not actually worked for the city since his termination, all justices, including dissenting Justice Steve David, found that he is not entitled to back payment under the Wage Payment Statute.

Finally, Massa wrote that there still exists a genuine issue of material fact as to whether the city intentionally interfered with Curry’s employment without a legitimate business purpose. Thus, the denial of summary judge in favor of the city on Curry’s tortious interference claim was proper.

In a dissenting opinion, David said he does not “believe there’s any indication that the legislature intended that a utility superintendent may only be removed by the board for cause and only after notice and a hearing.” Further, because he believes Curry was not wrongfully discharged, David wrote that the intentional interference claim must also fail.

“Here, because I believe the mayor had the authority to terminate Curry at will, it cannot be said that he acted without a legitimate business purpose,” David wrote.

“More than that, even assuming arguendo that the mayor terminated Curry without proper authority pursuant to the statute, the record reflects he had legitimate business reasons for terminating Curry,” David continued, referencing the two men’s policy differences.

Feb. 14

Discipline – Conversion

In the Matter of: Gene D. Emmons


A Warrick County attorney who was already suspended from the practice of law for failure to comply with court orders has been disciplined with an additional three-year suspension after he converted an elderly woman’s guardianship funds to himself.

As a court-appointed guardian of an incapacitated 88-year-old woman living in a Warrick County nursing home, Gene Emmons, a Booneville attorney, became a signatory on the woman’s PTSB and PNC bank accounts. The PTSB account was an attorney fiduciary account subject to overdraft reporting to the Supreme Court Disciplinary Commission.

Without authorization, Emmons wrote three checks to himself totaling $20,000 from the PTSB account, noting in the subject line that they checks were for “legal fees.” The court ordered Emmons to prepare a biennial accounting of his guardianship over the woman in 2015, which he failed to do, prompting his removal as her guardian. Emmons was then ordered to file a final accounting, which he also did not complete.

Emmons then failed to appear at a court-ordered hearing for his failure to comply with the accountings, and he did not respond to an investigation into his actions by the Disciplinary Commission. Subsequent show cause proceedings resulted in Emmons’ indefinite suspension due to his noncooperation in 2016 in Matter of Emmons, 52 N.E.3d 797 (Ind. 2016).

Emmons was found to have violated Indiana Professional Conduct Rules 1.15(a), 3.4(c), 8.1(b) and 8.4(b), (c) and (d) as well as Rule 4(A)(2) of the Indiana Supreme Court Disciplinary Commission Rules Governing Attorney Trust Account Overdraft Reporting. The commission recommended that Emmons be suspended for at least three years without credit for his previous noncooperation suspension, and the Indiana Supreme Court agreed.

In a per curiam opinion, the justices wrote that Emmons’ conversion of the guardianship funds and his attempts to conceal his actions were “among the most serious types of misconduct.” While the American Bar Association’s Standards for Imposing Lawyer Sanctions recommend disbarment for such conduct, the court noted that the commission had found Emmons’ inexperience as an attorney and lack of prior disciplinary actions as mitigating factors. Emmons was admitted to practice in 2008.

The court agreed to the recommendation of a three-year suspension without automatic reinstatement. If Emmons chooses to petition for reinstatement after the three-year period has expired, he will have to “prove his professional rehabilitation by clear and convincing evidence.” The costs of the proceedings were also assessed against him.

Justice Steven David voted to reject the conditional agreement proposed by the Disciplinary Commission and Emmons.

Indiana Court of Appeals

Feb. 6

Criminal – Traffic Stop/Marijuana

State of Indiana v. James Parrott


A police officer who said he detected “a strong odor of raw marijuana” coming from a car during a traffic stop had probable cause to search the driver, the Indiana Court of Appeals ruled in reversing a trial court.

An Indianapolis police officer stopped a car driven by James Parrott after he said Parrott ran a stop sign. After smelling the odor, the officer searched Parrott, finding small quantities of marijuana, crack cocaine and Percocet pills. According to the record, Parrott attempted to flee officers at the scene but was quickly apprehended.

Parrott was charged with Level 6 felony counts of cocaine and narcotic drug possession, Class B misdemeanor marijuana possession, and two Class A misdemeanor counts of resisting law enforcement. A Marion Superior judge suppressed the evidence found in the search, prompting the state to appeal.

“Parrott filed a motion to dismiss the State’s appeal, arguing that the State was required to dismiss the charges before it could appeal the suppression order. Because the ultimate effect of the order is to preclude further prosecution of the drug-related charges, at a minimum, we deny Parrott’s motion to dismiss,” Judge Terry Crone wrote for the panel. Crone wrote that the state was not required to dismiss the charges before filing a notice of interlocutory appeal on the motion to suppress.

Likewise, the panel concluded that the facts and circumstances within the officer’s knowledge were sufficient to warrant a reasonable belief that Parrott possessed marijuana.

“The State argues that the trial court erred in granting Parrott’s motion to dismiss, asserting that the officer had probable cause to arrest Parrott based on the strong odor of raw marijuana emanating from his vehicle and conduct a warrantless search incident to that arrest. We agree and therefore reverse and remand for further proceedings,” the panel held.

Feb. 9

Criminal – Bestiality

Andy Shinnock v. State of Indiana


Although a Delaware County man admitted to sexually assaulting his roommate’s dog, the Indiana Court of Appeals overturned the man’s bestiality conviction because the prosecution failed to establish a corpus delicti.

Andy Shinnock was charged with bestiality after he admitted to having sex with his roommate’s dog. During roommate Paul Moore’s testimony at trial, Shinnock’s counsel objected to the admission of Shinnock’s confession to Moore that he had attempted to have sex with the dog because corpus delicti had not been established.

Defense counsel also objected to the admission of a recording of Shinnock’s confession to Moore, Moore’s 911 call and Shinnock’s confession to investigators on the basis of a lack of corpus delicti. The Delaware Circuit Court overruled the objections, but did grant the defense’s request for the record to show a continuing objection.

Shinnock was found guilty as charged but mentally ill, but the Indiana Court of Appeal reversed his convictions based on the defense’s corpus delicti claims.

Senior Judge John Sharpnack wrote for the unanimous panel that the corpus delicti in the case would at least be a dog whose sex organ had been penetrated by the sex organ of a human male. But the only evidence against Shinnock, other than his confession, was Moore’s testimony that his dogs did not respond to him as usual when he returned home on the day of the alleged assault and that he found Shinnock wearing only a T-shirt and boxers that day, Sharpnack wrote.

Further, there was no evidence of that the dog’s sex organ had been injured, the judge said. Thus, because there was no proof of the crime of bestiality other than Shinnock’s confessions, the admission of that confession was error and Shinnock’s case was remanded to the Delaware Circuit Court.

Feb. 14

Civil Tort – Defamation/Blacklisting

School City of Hammond District v. Chad Rueth


A jury’s $550,000 defamation and blacklisting verdict in favor of a former school athletic director in northwestern Indiana was overturned by the Indiana Court of Appeals.

Chad Rueth won the judgment after he sued School City of Hammond District. Rueth had been athletic director for Gavit High School for several years until principal Michelle Ondas decided not to renew his contract in 2012. Rueth wasn’t aware that Ondas had decided several months earlier not to renew his contract, during which time Rueth was a finalist for the athletic director position at his alma mater, Bishop Noll Institute.

But members of Bishop Noll’s hiring committee heard rumors, including from Ondas’ husband, that Rueth would be out of his job at Gavit, even though he had been invited to re-apply. Emails in the court record from committee members, who ultimately chose someone else as AD, show Rueth’s situation at Gavit had been a factor in their considerations.

Rueth said he learned of Ondas’ decision not to renew his contract the day of his interview with the Bishop Noll committee. Rueth said the interview didn’t go well because he was still reeling, and he informed Bishop Noll’s principal afterward that he was being let go as AD at Gavit.

A Lake Superior jury weighing the evidence returned a general verdict for Reuth and awarded damages of $550,000, and the trial court later entered judgment. School City of Hammond District filed a motion to correct error, which the trial court denied. The Court of Appeals reversed.

“(W)e conclude that there is insufficient evidence to support a verdict for defamation or blacklisting, and, as such, the trial court abused its discretion by denying the District’s Motion to Correct Error,” Judge Patricia Riley wrote.

Because Ondas communicated to Rueth that his contract would not be renewed, the statement was truthful and did not meet the elements of defamation, the panel held. And while the court acknowledged its duty of deference to a jury verdict, it also noted, “all the members of the Hiring Committee who testified, as well as Principal Ondas, indicated there was no communication between the District and the Hiring Committee regarding Rueth. … Accordingly, there is insufficient evidence to support a verdict for defamation,” Riley wrote.

Likewise, the panel ruled that Rueth had not been a victim of blacklisting, through which damages could be awarded under I.C. 22-5-3-2. Rueth was not fired from his teaching position at Gavit, and the fact that his athletic director contract was not renewed was not tantamount to a discharge, the COA found.

Indiana Tax Court

Feb. 6

Tax – Educational Property Tax Exemption

Hamilton County Assessor v. Charles E. Duke


The Indiana Tax Court has reversed an educational property tax exemption for a Carmel day care after finding that the land’s owner failed to properly compare the total time the property was used for educational purposes against the total time the day care utilized the land.

Charles Duke incorporated the Little Lamb Daycare, Inc. as a for-profit corporation and opened the day care on his property in Carmel. The day care used a Bible-based curriculum that instructed children up to 6 years old in various educational subjects, though its lessons were not governed by a specific church or denomination.

In the 2009, 2010 and 2011 tax years, Duke filed three property tax exemption applications, claiming that because Little Lamb used 84 percent of the property for educational and religious purposes, that portion of his property was entitled to exemption under Indiana Code 6-1.1-10-16 and 6-1.1-10-36.3 After the Hamilton County Property Tax Assessment Board of Appeals denied his request, Duke appealed to the Indiana Board of Tax Review, which denied his partial religious exemption but granted his partial education exemption.

The Hamilton County assessor appealed, arguing that the board erred in granting 84 percent of the property an educational exemption because Duke failed to identify the time spent on specific exempt activities and compare that to the total amount of time the property was used. Duke, however, contended that the board erred in denying his partial religious exemption.

The evidence in the case shows that Little Lamb used the property for both educational and non-educational purposes, Indiana Tax Court Judge Martha Blood Wentworth wrote. However, Duke failed to identify how the day care’s activities furthered educational purposes, and also did not compare the amounts of time the property was used for education against the total time it was in use, she wrote. Without that comparison, Wentworth said the board’s determination in Duke’s favor on the issue of the partial education exemption was contrary to law.

Similarly, Wentworth wrote that Duke failed to explain how the day care’s activities furthered religious purposes and also did not provide a comparison of the time spent of religious activities versus the total time the daycare was in use on Duke’s property. Thus, the board was correct to deny Duke’s partial religious exemption, the judge said.•

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